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November 26, 1996


Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Released for Publication January 15, 1997.

Presiding Justice Hartman delivered the opinion of the court: Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

This is the second appeal involving these parties. White v. Village of Homewood, 256 Ill. App. 3d 354, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993), appeal denied, 155 Ill. 2d 577, 633 N.E.2d 16 (1994) (White I). In White I, this court reversed the circuit court's order granting defendants' motion to dismiss, and remanded the case with instructions. The present appeal emanates from that remandment.

Plaintiff Angela White sued defendants, Village of Homewood and Village of Homewood Fire and Police Commission (Homewood), for injuries sustained in a fall from horizontal bars she was climbing in pursuance of a firefighter's physical examination. The circuit court granted Homewood's motion for summary judgment. White appeals, arguing that a special duty exception to the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), if satisfied, would allow her to recover damages from defendants, raising a genuine issue of material fact and precluding summary judgment.

In 1990, White responded to an advertisement in a local newspaper, which sought applicants for the position of firefighter with the Homewood Fire Department. She completed an employment application. She knew she would have to take a physical agility test that applicants must pass in order to be considered for the firefighter position. Just before taking the test, White signed an agreement releasing Homewood from liability for any injuries that might occur during the test.

On June 16, 1990, White and seventy-four other applicants arrived at the Homewood Fire Department to take the physical agility test. The test required applicants to display strength, stamina, and the ability to perform under conditions resembling an actual fire. There were several stations prepared for the exam at which applicants were required to perform specific exercises. At the first few stations, applicants performed sit-ups, squat thrusts and chin-ups, and had to lift and carry a 200-pound dummy without allowing any portion of the dummy to touch the ground. A fifth exercise involved lifting and carrying a pail filled with rocks.

At station number six the exercise involved climbing up a vertical ladder, which intersected with a fifteen-foot-long horizontal ladder, and then climbing across the horizontal ladder, which was suspended approximately eight feet from the ground. During the exercise, White's hands slipped off the bars of one of the ladders, and she fell several feet to a mat placed on the floor under the ladders. White sustained injuries to her wrist and elbow.

On December 10, 1990, White filed suit against Homewood, alleging that Homewood's fire department conducted the physical agility test in a negligent manner. On March 7, 1991, Homewood moved to dismiss pursuant to section 2-615 of the Code of Civil procedure, (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now at 735 ILCS 5/2-615 (West 1994))), for failing to plead facts demonstrating the existence of a duty owed White, as well as a breach of that duty.

White subsequently filed an amended complaint containing four counts and joining a second defendant, the Village of Homewood Fire and Police Commission (Commission), *fn1 which administered the physical agility test. Homewood's second section 2-615 motion to dismiss all counts was granted with respect to three of the four counts, allowing White to pursue a claim only for ordinary negligence.

Homewood next filed a third motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-619 (West 1992), alleging that the release signed by White before she took the physical agility test barred her claim. White argued that Homewood furnished no consideration for the agreement, rendering the release unenforceable. The circuit court granted the motion, however, and dismissed White's claim with prejudice. On appeal, this court reversed the circuit court's decision, holding the release unenforceable for lack of consideration. This court also found that the agreement violated public policy, in that plaintiff was forced to sign it in order to take the physical agility test, and the release placed White "at the mercy of her potential employer's negligence." White I, 256 Ill. App. 3d at 359. The circuit court was instructed to reinstate the ordinary negligence count.

On remand, Homewood filed an answer and several affirmative defenses. First, Homewood claimed that White's own negligence proximately caused her injuries, entitling Homewood to a reduction in any damages that might be awarded White, or no recovery at all. Additionally, Homewood referred to four sections of the Tort Immunity Act, 745 ILCS 10/1-101 et seq. (West 1994) (Act), each of which assertedly granted it immunity against White's claim.

Homewood first looked to section 3-102(a) (745 ILCS 10/3-102(a) (West 1994)) as a defense. Section 3-102(a) immunizes any public entity against liability for injuries occurring on its property, unless the public entity had actual or constructive notice of the existence of an unreasonably unsafe condition on the premises. Homewood argued that it had no actual or constructive notice of any unreasonably dangerous condition at the fire station, and that under this statute it could not be liable for White's injury.

Homewood next offered section 3-108(a) as support for its immunity argument. 745 ILCS 10/3-108(a) (West 1994). Section 3-108(a) immunizes local public entities and public employees against liability for injuries resulting from a "failure to supervise an activity on or the use of any public property." Interpreting this provision, Homewood contended that its administration of the physical agility test constituted a supervisory function. As a ...

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